There should be nothing particularly daring about this position.

Seems obvious enough to me, but apparently not to some. What amazes me is the number who do take issue with it one way or another.

I think the writing parallel our host writes about is clearly protected.

The wedding photographer issue isn't quite as clear, but I view Professor Volokh as having the superior argument; I disagree with Brian Macker that there's no art to wedding photography. Good wedding photography has a substantial artistic component.

But where is that line, exactly? How about a wedding cake - certainly, a work of art of some type, but also a food product. Would that operator be protected, or could they be compelled to be non-discriminatory?

If our cake maker (and decorator) is protected, how about a sushi maker? Presentation counts, you know. What about my burger? It comes in a decorative wrapper.

At the ends, the situation seems fairly easy to me, but the muddled middle.... not so much.

--JRM

Sorry but this is not about free speech. Taking wedding photographs is as much about art as painting a house. You are not hired to give your interpretation of the wedding.

This is just not true! See here for instance, or look at this (schlocky) wedding picture. Are you telling me that this picture isn't an artistic interpretation of events? Do you realize that many wedding photographs are staged? Who's doing the staging? I'll answer my own question - the photographer. Don't you think he has an interpretation, certain values, certain messages and feelings, that he's trying to bring out when he gives his subjects directions? This idea that wedding photography isn't expression is absurd. You might as well say that Obama's professional campaign photographers and videographers are neutrally "documenting" Obama's speeches, that all they do is click their shutters and make sure he's in focus.

The daring part is that it's a lot harder to defend your position consistently when your position applies to unpopular viewpoints and causes célèbres equally. People tend to impute the viewpoints you defend to you yourself. (I'm sure I'm guilty of this in my last comment.) Though, if you're thin-skinned enough to be afraid of that, or of your angry comment being made the subject of a post thousands of people will read, Internet debate is not for you.

And of course maintaining consistency is not just difficult because other people might impute an unpopular viewpoint to you; it's also hard to maintain consistency when you realize it results in an outcome you personally don't like. In this way many high-minded principles suffer the death of a thousand cuts when they turn out to be uncomfortable at times in practice, and it's clear that the First Amendment is one such principle.

So in a way I think it is definitely daring to be consistent when it would be so much easier to be inconsistent. People's beef with the ACLU here was that the ACLU purports to be consistent, defending the KKK and whoever, but the purported NM photographer involvement and actual Seattle photographer involvement are apparently inconsistent.

This is a case of a private business owner refusing to contract for providing a service and a good that happen to involve art. So the nub of the issue is whether the New Mexico public accommodation law goes too far in its reach to include such services as artists provide. It's the same thing as your beef with Title VII - it may be perfectly desirable and right for people to be free from hearing speech that creates a hostile work environment, but in your view, Title VII goes too far and suppresses speech.

So, EV, where do you draw the line between public accommodations laws that are First Amendment-sound, and laws that infringe on freedom of expression? That's the balancing act that leads to the temptation of inconsistency on either side of it.

What about lawyers? Most of what we do is expressive in one form or another. Does that protect our prejudice?

What if I were an old-fashioned letter writer? I open a store, 5 cents a page, and I'll write whatever you want me to for your beau or your belle. Only I don't write for anyone who isn't white. Actionable?

In other words, to what extent are those of us whose professions & commerce expressive bound by anti-discrimination laws of general application? I don't think the answer is quite as clear cut as this post suggests.

I still think this is a clear 13th amendment case, but I gather the courts have hollowed that amendment out, so that it doesn't apply to any compulsion of service they approve of.

Forget the First Amendment. Suppose I'm a day labourer. I dig holes for a living. Nothing First-Amendmenty about that. Now suppose I decide that I don't want to work for black people. I refuse all job offers from black people, and let them know not to bother offering me a job again, because I will not work for them. I loudly declare that "I haven't sunk so low as to take orders from a nigger"; I accept offers from non-black people for harder work at lower pay; on days when I get no other offers I go home empty-handed; and in other ways ensure that there's no doubt that my motives are purely racial. Is it really the case that a state agency can compel me to accept the next offer I get from a black person? How is that not a violation of the 13th Amendment and utterly repugnant to the freedom the USA is supposed to be about? In what sort of country does one have to justify refusal to work for somebody?

great, now I can refuse to sell furniture to gay clients. Thanks. After all when I help them pick fabrics for sofas I create art, right?

Interesting and once-worthy arguments all, but clearly overwritten by the Right Not to be Offended.

Although the discussion is trying to find a "speech" exception to the situation, the crux of the issue is whether a person can be forced to participate in an activity with which they don't agree. Inevitably, this New Mexico law is going to capture somebody who won't fall within a "speech" exception, assuming arguendo one exists.

My first thought when reading this story was: gee, could the same law be used to force a Christian pharmacist to dispense the morning after pill (assuming the law protected that situation as well)?

What if I were an old-fashioned letter writer? I open a store, 5 cents a page, and I'll write whatever you want me to for your beau or your belle. Only I don't write for anyone who isn't white. Actionable?

You may not've read the other posts yet, but you're missing a distinction he's made several times. The issue is the content of the expression. No, you couldn't be forced to write old-fashioned letters saying "people who aren't right are awesome and equally cool," because your objection would be to the content of your protected speech, rather than to the race of the would-be customer. Yes, you could be forced to write "some apples are red" for a black guy, because your complaint wouldn't be the content, but the customer.

At least that's the distinction I've understood him to make--content vs. customers.

I'm from New Mexico - annoyingly in this case. New Mexico is strange, I wouldn't read too much into it. (The Governor prior to Richardson was this hyper-pro-pot but otherwise far-right Republican.) It's "The Land of Enchantment" read "We Lean Center-Wacky."

I don't think this case is (should be) very much about the First Amendment.

I rather think this case is more about the broader need to distinguish between small businesses and large corporations in, like, all policy. I.E., assuming the First Amendment weren't implicated, I still think that a small business owner such as Elaine should have less-to-no burden in this sort of question. I include regulations such as handicapped access, employee rights (somewhat), the new Florida gun law, etc. etc. as regulations which shouldn't apply to small businesses (i.e. those that approach individual or family ventures). I like the "we reserve the right to refuse service to anyone" ideal.

Corporations have actual power, and I completely support the above regulations (and more) when it comes to even smallish corporations.

In some ways, you could compare to Federalism. Let the small businesses be experimental with as much leeway as practical. Small businesses thrive in large part when allowed to differentiate themselves. I don't even care if there are overtly racist small businesses (which let's be honest, exist - I live in Seattle now and there are several bars and barbers which I am not allowed to visit due to being white).

As an aside - New Mexico produced one of the most interesting Supreme Court cases of (I think it was) last year, having to do with state educational funding distribution requirements. The statute lays out a very straightforward forumla for qualifying distributions, which New Mexico clearly didn't satisfy. Equally clear was that congress didn't really understand the formula when they passed it. The courts were so split all the way up that the Dept. of Education administrative decision was still the controlling judgement by the time it reached the Supreme Court... which overturned the plain language of the statute. It's a very interesting split decision... if I remember correctly, Kennedy wrote a brief concurrence where he basically said straight up that this is the one case in a million where policy considerations get to override plain language.

This is one of those cases where I thank God that lawyers exist so that someone can actually figure out all the rights involved and how to balance them.

Freedom of speech is the crux of the issue, huh?

So can a newspaper refuse to run photos of interracial weddings?

Professional wedding photographers (and other sorts too, I'm sure) refuse contracts all the time for all sorts of reasons. They may have a prior engagement, be unfamiliar with the particular kind of ceremony, uncomfortable with the expectations of the bride and groom, wary of interference from other family members, or simply want a weekend off to catch up on other work. I'd go so far as to guess that the best wedding photographers refuse more business than they accept.

Prof. Volokh:

I'm not trying to be sarcastic here. Under your argument, could a photographer who takes basic portraits at wal-mart or Sears simply refuse to photograph blacks or gays?

If not, what's the difference and where is the line where "choosing their subjects based on race" is ok?

See here for instance, or look at this (schlocky) wedding picture.

Anything that can be done can be done poorly. Plumbing, for instance.

Maybe if most of the plumbers in town told Eugene "Sorry, but we don't do plumbing for Jews." next time his sink was clogged he'd change his mind on the issue.

It strikes me as an important distinction here that while wedding photographers do exercise artistic control over substantial parts of their work, key elements of the photographs -- the setting for the ceremony and the reception, flowers and other decorations for those locations, the time of day, the identity and number of guests, and (most significantly for these purposes) the identity of the married couple -- are never artistic, expressive choices made by the photographer.

If this photographer had a practice of carefully reviewing the couples who sought her services and rejected some but not others on artistic grounds -- and I should say that I've never heard of such a thing -- it would seem more reasonable to me to say that her choice of whether to photograph a particular couple is an expressive choice that is entitled to First Amendment protection.

why can't we let market forces dictate what the law is trying to force on us?


Because it doesn't work. Contrary to the beliefs of some people around here, the Market Fairy does not automatically fix all problems. In the case of racial discrimination, the market force favored it at one time. Maybe it still does.

Of course wedding photogs refuse business but they shouldn't be allowed to refuse the business in a discriminatory manner.

Based on these discussions I hardly think that's a given. And I suspect many would disagree on what "discriminatory" even means in this context.

Apparently if you are a photographer the key is to make sure you have a plausible lie to refuse contracts you don't want to enter into. So, if the photographer refuses the contract because he has a prior appointment, can the state require him to prove that to the satisfaction the customer? And if it turned out that he's actually free that weekend, can he be punished for lying to them? That doesn't seem nearly as unlikely as it did before this case.

And though it's been hinted at in earlier discussions, I hope that those commenters who want to bring the jackboot of the state human rights bureaucracy down on poor Elaine's neck would be equally enthusiastic about forcing her to agree to photograph, say, a Santeria wedding (assuming there is such a thing; but even if there's not, humor me for a moment) involving the sacrifice of animals or a fundamentalist LDS sect member's polygamous wedding to a sixteen-year-old girl (let's assume (1) that the age of consent is 16 and (2) that the wedding takes the form of a commitment ceremony that does not purport to be valid under state law - i.e., that, just as with the gay wedding, it's not a valid marriage but also not an illegal ceremony). After all, the New Mexico statute forbids discrimination on the basis of religion, does it not?

If you would distinguish between the actual case and either of these hypotheticals, please explain why. Or is it simply that gays are "more equal" than less cosmopolitan (or more beknighted) protected classes?

An artist doesn't have to photograph black people, but a person who runs a "I'll take photos of your wedding" business has to serve clients equally under federal law, and the First Amendment simply does not apply, as there is no speech, any more than a public notary who refuses to serve African Americans is protecting their "speech" writes because their work involves words.

What general principle is there to categorize wedding photos as "no[t] speech," but to imply that other photos are? And are you willing to live with the consequences, that legislatures can forbid taking photos of same-sex commitment ceremonies?

q: the key distinction is that no one is asking the writers or photographers to personally express an opinion. Instead they are asked to produce a product for a client. Yes it's an expressive product but it doesn't require a personal expression by the producer.

if the photographer refuses the contract because he has a prior appointment, can the state require him to prove that to the satisfaction the customer?

No. The burden of proof would be on the regulatory agency or prosecutor, not the photographer. But they probably could subpoena the relevant business data. (calendars, emails)

And if it turned out that he's actually free that weekend, can he be punished for lying to them?

Lying to the customer about being busy is not illegal per se. Lying as a means to implement a discriminatory policy would be. My understanding is that the prosecution would have to prove intent or a pattern in addition to the falsehood.

So, ERH, you would compel a Jewish architect to draft up the plans for a Christian Identity church? No one's asking the architect to express her opinion on the theological tenets of the church (or anything else), and religion is, in New Mexico at least, a protected class. Yes or no, please.

q: the key distinction is that no one is asking the writers or photographers to personally express an opinion. Instead they are asked to produce a product for a client. Yes it's an expressive product but it doesn't require a personal expression by the producer.

In being asked to produce a product, they are being asked to express a certain viewpoint. I don't quite understand why it doesn't require a "personal expression"; the producer is making the expression isn't she? In what way is that not personal?

Seems the folks on this board really hate antidiscrimination regulation. Take a stand on some other issues!

OK. It's my stance that posters who disagree with the majority opinion of the commenters on a blog are attempting to create a hostile environment, and should be sanctioned. Your right to express yourself on volokh.com should NOT be used in a discriminatory manner against minorities like libertarians.

How was that? When will you mail us your check for $6600?

This is not a difficult case; liability should be rejected.

The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any compelling interests.

Photography is inherently expressive. That's why copyright exists in photographs.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

The New Mexico Human Rights Commission's ruling against Elane Photography in the Vanessa Willock case should therefore be reversed.

Someone should enlist the hateful bigots at Fred Phelps's church to ask a gay printer to print their literature, protest materials, and so on

Folks more knowlegable about the relevant law may need to correct this, but my understanding is that a printer is under no obligation to print whatever content the customer wants. It's legal to say "I won't print anti-gay literature." It's also legal to say "I won't print pro-gay literature."

What's illegal is to say "I won't print your material because you're black." or "I won't print your material because you're gay." or "I wont' print your material because you're straight."

So, your hypothetical gay printer can't say "Sorry Fred, but since you are heterosexual I won't print your pamphlets." He can say "You are a raving nutjob and I refuse to print this crap."

I think there's an argument to be made that our photographer is more like our hypothetical printer than like a restaurant who won't serve gays. (i.e. I don't do this rather than I won't do this for you because you're gay.) But I haven't seen it yet. Anyone?

If a photographer can't refuse to do a lesbian commitment ceremony, can a gay newspaper refuse to run a full page ad about reparative therapy? Can the New York Times refuse to run ads from neo-Nazis calling for the removal of all Jews from political office? What (other than the fact that homosexuals are offended) distinguishes those hypotheticals from this case?

Folks more knowlegable about the relevant law may need to correct this, but my understanding is that a printer is under no obligation to print whatever content the customer wants. It's legal to say "I won't print anti-gay literature."

Try again, Clem. A couple of years back, a video reproduction service back East refuse an order from a homosexual advocacy group--and got sued.

What this really boils down to: homosexuals have the right to force anyone in business to do their bidding, because disapproval of homosexuality is just a sign that you are an ignorant bigot who needs to be punished.

Homosexuals wanted the freedom to be out of the closet. Now that they are out, they are demonstrating that they aren't prepared to let anyone else be free. Time to shove them back in the closet.

There real question here is why was Elaine so stupid as to not give a pretextual reason for not taking the job. She apparently wanted to be loud and proud that she's a bigot &I can't really muster up much sympathy for her. Plus while Prof. Volokh has a good argument, I'd like to here from how he thinks the line should be drawn- almost every service has some artistic component to them- how do we determine which ones make the cut for getting 1st amendment protection.

Eugene's really pushing the envelope here.

Forty years a go we had a real problem with restaurants and hotels refusing blacks. And even courthouses had 2 drinking fountains next to each other, one blacks only and one whites only.

But today I think if they repealed the Civil RIghts Act and said it's okay to refuse to serve blacks in restaurants and hotels there would be no problem. There's enough social stigma that any place that had a whites only sign wouldn't survive, or at least would be such a small segment of the market that there would be no harm to blacks.

I personally think anyone should be able to refuse to work for anyone with no governmental interference.

I think there's an argument to be made that our photographer is more like our hypothetical printer than like a restaurant who won't serve gays. (i.e. I don't do this rather than I won't do this for you because you're gay.) But I haven't seen it yet. Anyone?

That's been Prof. Volokh's argument the whole time, I think.

You know what I can't wait to see? When the Human Rights Commission is faced with a Muslim not wanting to do something for homosexuals. I'd like to see which "victim" they would side with.

When you see somthing like a Human Rights Commission, you know up front that any combination of being a white, Christian, heterosecual, male means you lose no matter what. Now, when it comes down to a Muslim, who is part of the most virulently and violently anti-homosexual religion in the world, but a pet favorite of liberals, I have a feeling that the HRC won't be as interested.

As a side note, that photographer is an idiot. She should embrace capitalism and take pictures for anyone hwo wants them and is ready to pay her for them.

I think the difficulty in this situation arises from a failure to remember our history and why the anti discrimination laws were passed in the first place.

It was not too long ago that Blacks were refused service in public restaurants. Think of the Woolworth sit ins and Lester Maddux, the former Governor of Georgia, who rode to office on a platform of refusing service to Blacks in his chicken restaurant.

The argument for such discrimination was based on freedom of association as claimed under the first amendment.

To combat that discrimination, the civil rights bills were passed prohibiting discrimination in food service and gradually expanded to the general prohibitions in refusing service involved here.

Certainly, there are cases where the type of service required would be either impossible, or very difficult to perform given the attitude of the provider. Perhaps shooting wedding photographs is one of those area, but reasonable people can differ on that point. To me, the test should be that based on the history of the problem sought to be remedied and not some abstract and essentially undefinable notion of free speech in this context.

Classic case of how, when you have a hammer, every problem ends up looking like a nail.

As I said on the first thread on this topic, different public policy problems require different public policy solutions. Blacks in restaurants isn't the same problem as wedding photographers with quirky personal beliefs, so the two situations aren't comparable. I would consider a photographer who wouldn't work for ANY black couple to be a nasty person, but that's not the same as organized Jim Crow across whole regions of the country. In most businesses, the penalty for a businessperson with a narrow mindset is a narrow customer base and less income, not the arm of the law. It would be particularly fitting if a black (or gay, going back to the original example) photographer got into the game and started poaching business from the bigot.

The First Amendment arguments on either side (free speech and religious freedom) don't strike me as winners, but the real problem is that they are both ways to weasel out of a dilemma that shouldn't exist in the first place.

The argument for such discrimination was based on freedom of association as claimed under the first amendment.

What you are forgetting is that federal and state governments did not merely tolerate discrimination, but actively required it. Plessy v. Ferguson (1896) involved a Louisiana law that required railroads to segregate passengers based on race--with personal fines for the officers of the corporation if they weren't enforcing the law. West Coast Hotel Co. v. Parrish (1937) involved a Washington State law that discriminated against women concerning working conditions in the hopes of forcing them out of the workplace.

Having spent many decades strongly promoting discrimination against blacks and women, I can have a grudging support for laws that tried to, and actually did, break those patterns. Hostility to race was never based on religious belief in this country; it was based on maintenance of an economic system and a twisting of Social Darwinism. Only in the last couple of decades have bizarre groups like Aryan Nations tried to construct a religious veneer around their racial hatreds.

Unlike race and sex, there's no way for a restaurant owner or innkeeper to know that you are homosexual unless you make an effort to let them know.

Still, this is all very fanciful, because its at least equally likely that Phelps would refuse to hire a gay publisher than a gay publisher refuses to accept Phelps's money.

Unless, like this case, Phelps was looking for a way to sue the gay publisher and cause him considerable harm.

BTW, the equating of "being gay" and "hating gays" is pretty sickening as a moral stand.

I think homosexuals demanding the right to enslave people is pretty sickening, too. But that's what you are defending.

I'm curious, antifraud laws regulate the content of expressive activity and why are they not unconstitutional. I realize there is ample precedent but under this theory are not such precedents wrongly decided.

A hardcore libertarian might say they are wrongly decided. A legalist would say fradulant speech is of low-value and thus not protected, but photographs obviously are incomparable. A pragmatist might say certain restrictions on speech are necessary, but in the case of Elaine, it's difficult to say that the homosexual couple's marginal cost outweighs the marginal cost to the photographer. The former can always go to another photographer. The latter must now express a viewpoint that she finds immoral.

I suppose my problem is I'm not sure what "theory" you're talking about. And I don't really see anyone espousing that no expression should be regulated.

While I prefer sneakers to jackboots, I must confess that I am fond of civil rights laws even though they infringe on the rights of those who wish to limit their associations, in favor of certain groups who have been disproportionately dissociated.

This is an interesting case, and I'm still not entirely sure what I would do with Elaine's constitutional claim (but if you put me on the federal bench I'll make the call - and Elaine's the underdog).

Hans Bader,

Thanks for what is probably the best post I've seen in the various threads supporting the photographer.

Hurley held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity to embrace a message of support for gay causes, because doing that violated the First Amendment. [edited for consiceness]

The relevant question here is: By taking photos of the ceremony is the photographer engaged in expressive activity that supports gay causes? In Hurley, the presence of the gay marchers in the parade amounted to a tacit endorsement of the cause by the parade orginizers. My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.

BTW, the equating of "being gay" and "hating gays" is pretty sickening as a moral stand.

As a moral stand, certainly. But as a legal basis for the regulation of speech, I would find the government's decision to punish advocacy on either side of the moral question even more sickening. And the last time I checked, we were debating issues of constitutionality and individual liberty, not morality. Though, admittedly, these days even lawyers are all too often incapable of distinguishing the two.

I guess it will be of no use to point to Clayton that when he says:

What you are forgetting is that federal and state governments did not merely tolerate discrimination, but actively required it.

Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).

His solution, of course, is that gays could just lie, tell everyone that they are straight, put fake pictures or their imaginary opposite sex spouses in the office, make excuses why they never show up, etc. After all, if they did not tell people they were gay, people like Clayton would not be forced to actually express how repugnant and deviate they are.

It would be a great solution, if gays just lied, but someone also said in this thread:

Because she's not a liar? You are intent on forcing people to lie. Why?

Who was it? Oh, it was Clayton. Never mind

I think that the tension here is in that content discrimination (legal) and client discrimination (illegal) are mixed up here.

It's illegal to refuse to make pictures for Jews because they are Jews.

But don't think it is illegal to refuse to make pictures of Jews because they are Jews.

As I understand it, the wedding photographer refused to take pictures of a same-sex wedding NOT because she refuses to take money from or deliver merchandise to a same-sex couple, but because she refuses to make pictures of a same-sex couple.

OTOH, if a same-sex couple hired her to photograph a bunch of flowers, and she did photographs of other people's flowers, she would not be able to refuse.

Examples of a cook, a house painter, etc. are not relevant because would they create the same content for, for example, Jewish and non-Jewish clients, all other things being equal.

Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).

Teachers, I knew about. But diplomats? Pray cite the law on that. Even in the 1970s, the National Security Agency only had a problem with closeted homosexuals; open ones were considered unblackmailable.

His solution, of course, is that gays could just lie, tell everyone that they are straight, put fake pictures or their imaginary opposite sex spouses in the office, make excuses why they never show up, etc. After all, if they did not tell people they were gay, people like Clayton would not be forced to actually express how repugnant and deviate they are.

Sorry, but this is not the case. I had a teacher in high school who was a very private person. No pictures of wife or family. Everyone assumed he was gay. I later found out that he wasn't. He was married (to a woman) and had a son. He just didn't mix personal life with professional life.

There are a lot of people with whom I have worked that I have no idea whether they are married or not. It doesn't come up in conversation. They don't have pictures of family at work. In some cases, they are divorced. A few might have been discreetly gay. Most simply didn't advertise their family structure, and guess what? No one cared.

RGB, I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination. If this wasn't a commercial venture there would be no questions.

Clayton said

Most simply didn't advertise their family structure, and guess what? No one cared.

Obviously Clayton (or anyone) cares that I do NOT disclose your family structure.

The problem is that Clayton definitely cares if I do disclose it. If I put a picture of my commitment ceremony in my office I am, as he kindly describes, out of the closet, and taht really bothers him.

I don't really care much that people object me being gay. I object when people believe that I should not express my life and family in the same terms as everyone else. In a way, I do object that I am expected to lie.

Clayton, is not different you wanting me back in the closet, than people don't wanting you to express disapproval of homosexuality.

Though again I don't think you get it. I am a human being, and I deserve not more, but not less, than you do.

RGB, I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination. If this wasn't a commercial venture there would be no questions.

So you would agree that a gay newspaper publisher is obligated to print reparative therapy ads, and ads from Rev. Phelps. Christian magazines are obligated to print Muslim proselytizing ads. Atheist publications are obligated to accept Christian advertising. Orthodox Jewish publications are obligated to accept ham advertising ("Perfect for Passover"). Jet is obligated to print ads from the Klan ("You are inferior scum, and you deserve to die!")

Can a "man-to-man" massage service be obligated to service women? More troubling to the employees, can a lesbian massage service be obligated to service men?

There seems to be very little freedom left if "commerce" is the magic password to abolishing individual choice.

And what makes commerce so special? Why can a woman turn down a woman for a date?

I'm not intent on forcing anything, I'm just remarking about her stupidity. Also, I dunno about you, but I find it far more disturbing when people are shameless about their bigotry then when they try to hide it. At least the ones hiding it realize on some level that its wrong.

You call it bigotry. I call homosexuality a pretty damaged expression. The difference is that you want to use the government to punish "bigotry." I'm perfectly content to let you be a homosexual. What consenting adults do in private is none of the government's business, and it doesn't matter if it is sodomy, photography, or employment. It's a shame that homosexuals no longer believe this.

Aren't these the same people who continually express that "You can't legislate morality!"? If so, why are they trying to legislate morality with ridiculous and immoral laws that use governmental power to force individuals to pretend to be nice to others.

Because that was only a ploy. Homofascists do believe in legislating morality--now that they are in charge. At this point, the only difference between those who wanted homosexuality to remain a crime, and homofascists, is that they are arguing about what morality should be imposed--not whether it is a good idea or not to be imposing 51%'s morality on the other 49%.

I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination

So we have inalienable rights and core freedoms, unless we want to work for a living? Did I miss the lecture in my law classes where they pointed out only hobos and panhandlers actually get full protection for their liberty?

To put it mildly, I do not agree that the desire to enter into commercial activity automatically negates a host of rights. The Commerce Clause, the Constitution's most abused text, does not lend itself readily to that reading. Any time you want to claim a policy preference trumps a basic Constitutional right, you have a huge hurdle to clear in order to prove the benefits outweigh the price of infringing a liberty, in this case the right to freely enter into contract.

Given the contrasted level of harm to the offended party (a couple must look for another photographer) and the supposed offender (compelling speech from an artist in a medium already recognized as expressive art), I hardly think you can call the interests "balanced".

Because that was only a ploy. Homofascists do believe in legislating morality--now that they are in charge. At this point, the only difference between those who wanted homosexuality to remain a crime, and homofascists, is that they are arguing about what morality should be imposed--not whether it is a good idea or not to be imposing 51%'s morality on the other 49%.

BINGO!

Clayton,
To answer your question on the hypothetical ads yes they should be allowed.

For you dream massage service, the issue isn't whether a same sex massage palor would be forced to allow clientele of the opposite gender (as the court has allowed this distinction), but instead whether they would be forced to accept both straight and gay clients, which of course they should.

Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).

Still not allowed in the military.

Homofascists do believe in legislating morality--now that they are in charge.

If they are in charge, why are they getting kicked out of the Army even when they have critical skills?

You're reading waaaaay too much into my admitedlly snarky post. The point I was trying to make is that a photographer who refuses to provide her usual service to lesbians is not very different than a plumber who won't fix pipes for Jews.

But she's not refusing to photograph lesbians; she's refusing to photograph a lesbian commitment ceremony. That actually is "very different than a plumber who won't fix pipes for Jews." (Now, maybe if the plumber was refusing to fix the pipes at ADL headquarters, because the plumber didn't want to give any assistance to Abe Foxman's jihad against Jimmy Carter, Mearsheimer/Walt, Mel Gibson, and right-wing Christians generally, you'd have a valid analogy, but that wouldn't be so egregious, would it?)

Seamus,

Your analogy only works if either 1) the act of lesbian marriage is a political event, or 2) the lesbian couple's marriage is, from their viewpoint, a political event. Neither seem very accurate.

If the viewpoint of the third person is all that matters, then your analogy still fails. If a plumber who won't fix pipes for Jews won't do so because he believes that there should be a law stating that Jews shouldn't be allowed to live amongst Goyum, and he doesn't want to contribute to the political REALITY that they do, then the original analogy still works (at least from the distinction you are trying to make).

I agree that the ADL hypo is less troublesome - since they are discriminating against their client base based on political viewpoints rather than membership in a protected class - but the discrimination here appears to be against the Lesbians membership in a protected class, not any political speech that the Lesbians intend to make.

Are blacks fascists because they embrace antidiscrimination laws? Or what about whites who oppose affirmative action and want to legally compel schools or employers to give no favor to minorities if they want to do so? Is it fascist to force antidiscrimination laws on racists (black or white)?

A.C.: "In most businesses, the penalty for a businessperson with a narrow mindset is a narrow customer base and less income, not the arm of the law."

This is all well and good for members of a majority community, but not so good if one is a minority being discriminated against.

I would bet that in plenty of places in the South (where I grew up and have lived all my life) a restaurant or hotel that was allowed to and did prohibit black patrons could do quite well. Especially in the non-urban areas.

This may be a stupid question, but when did we allow the government to determine that a private business MUST accommodate everyone who walks in the door?

1964, 1989 for those with disabilities. If you don't like it move to one of those European countries almost everyone on this blog is always complaining about.

Brian--"You know what I can't wait to see? When the Human Rights Commission is faced with a Muslim not wanting to do something for homosexuals. I'd like to see which "victim" they would side with."

This was my question, too. This is already presenting some problems on college campuses. Nothing that has gone to a state HRC, as far as I know. But that time cannot be far off.

I suppose "I'd like to see which victim they side with" for reasons of snarkiness. (Hey, at least I'm honest about myself.)

But I also am genuinely curious as to whether gays of Muslims are viewed by faculty and admins as more institutionally victimized. I don't have a good guess, though I assume at most major universities there are more gay administrators than Muslims. Which tends to suggest that Muslims are "more out" of an "out group."

She apparently wanted to be loud and proud that she's a bigot &I can't really muster up much sympathy for her.

Funny, but I always felt the 1st Amendment cuts both ways. Seems you have a "free speech for me, but not for thee (because I disagree and you're a bigot and so must be punished)" approach. And should one's sympathy for the speaker affect how the 1st amendment is applied? I certainly hope not.

This is some of the wildest and least focused discussion I've seen here. People are completely forgetting several key elements of the original scenario and of EV's hypothetical.

First, there is no doubt that making photographs is protected expression, since it's consistently recognized as such in case law. Plumbing isn't. At some point, you have to stop reinventing the wheel.

Another component that's being ignored is that Elane's objection was based on her religious beliefs. What EV's pointing out is that the law (at least as applied by the NMHRC) is requiring Elane to assist in an event that she finds religiously objectionable, when recognition of the First Amendment interests would normally require the lesbian couple to accommodate her religious views and just find another photographer.

The scenario also has no genuine indication of discrimination against gay people. I haven't seen any credible info that Elane refuses to photograph gay people. She said she doesn't photograph same-sex weddings. I presume that she would shoot a wedding between a gay man and a gay woman, and also refuse to photograph a same-sex wedding between two straight men or or between a lesbian woman and a straight woman. That the event she objects to supporting is one that tends to be desired by a certain minority does not equate to discriminating against that minority. If you want to argue that her refusal is nevertheless motivated by an objection to "gayness," that really exposes the civil rights laws as through control measures, not equality measures.

Finally, it's not just about being forced to do something she doesn't want to do. There is no doubt that the law can and does require people to do things they'd rather not. I'm in the midst a project right now that the government forces me to complete every year by the 15th of April. In fact, in that endeavor, I'm also being forced to communicate information, but I don't have any valid religious objection to it.

What if the lesbian couple had come in to contract Elaine's services to do a birthday party for their child? Let's assume for the sake of argument that Elaine will photograph adult birthday parties.

If Elaine said, "sorry, I don't do children's birthday parties". Would the lesbian couple be able to sue on discrimination grounds?

How is this different than the current situation?

On another of these threads I mentioned that I belong to three "protected" groups (mostly protected for employment purposes - Woman, Over-40, disabled).

When I got married ten years ago, we went to a local florist to contract for flowers. The florist refused. They said it was because our wedding day was the day before Mothers' Day. We were disappointed that our first choice refused us service. We had gone in to order the flowers in March or perhaps as early as February. We felt that they had plenty of time for ordering flowers for our small wedding as well as Mothers' Day.

We found another florist who was willing to do a small wedding the day before Mothers' Day. We had beautiful flowers that may, in fact, have been less expensive than those available at first florist.

The first florist may have discriminated against us because I am disabled. They may not have. I don't particularly care. They may have ended up refusing too many people since a few years later they were out of business. Their building is still sitting there, empty...

Does anyone appreciate the irony that the State of New Mexico ITSELF discriminates against the same group? New Mexico does not recognize same-sex marriage. Yet it wishes to force a photographer to take pictures at a faux same-sex wedding!

I live in a right to work state. One thing that means is I can be fired for no reason. I would have no legal standing to sue. But I can not be fired for the wrong reason. In this case the photographer refused because the couple was gay. A protected class. Thats the wrong reason. If the groom were 6'8" and the bride 4'4" and was refused due to extreme height difference no legal action would have succeeded. Because the couple does not belong to a protected class.

I live in a right to work state. One thing that means is I can be fired for no reason.

When I lived in California, it wasn't a "right to work state." But I could still be fired for no reason.

Clayton, I believe you are referring to an "employment at will" state, not a "right to work" state in your 2:45 comment. The latter is a state in which employees cannot be forced to join a union as a condition of employment. The latter is a state in which an employer may terminate an employee's employment at any time for any reason or for no reason so long as it is not for an illegal reason.

A bit of stupidity is probably a small price to pay for something as monumental as Title VII; but I wonder how many of us can at least agree that a policy or law that forces us to make distinctions like "You, wedding photographer, may refuse to service these lesbians; however, you, wedding caterer, must put on your apron forthwith" is pretty darn stupid.

iowan:

In this case the photographer refused because the couple was gay.

What if the photographer had a stated policy, "I don't care if you're gay or straight, but I do not photograph same-sex civil unions." Would you argue that that policy should also be illegal? Is it akin to a restaurant that doesn't serve blacks?

Humpty Dumpty rules the day.

If I photograph weddings does that mean have to do civil unions? It is no more a "wedding" than a commitment ceremony between a boy &his dog. Marriage is between a man and a woman.

I would bet that in plenty of places in the South (where I grew up and have lived all my life) a restaurant or hotel that was allowed to and did prohibit black patrons could do quite well. Especially in the non-urban areas.

I would be curious to know how much of this discrimination was imposed.

Thomas Sowell's Markets and Minorities points out that if a business arbitrarily decides to give up on 10% of its potential customers because of irrational discrimination, it has the following effects--unless you can get other businesses to go along:

1. A 10% reduction in sales.

2. Assuming that your overhead doesn't change, likely a reduction in your profits.

3. A reduction in your ability to expand your business.

Something similar happens when you arbitrarily exclude 10% of your potential qualified workforce:

1. Less able to fill open positions.

2. The smaller set of choices for employees increases the wages you have to pay.

3. If potential employees know that you don't hire X, then X may not buy. Hence the "Don't Shop Where You Can't Work" campaign in 1930s New York City, directed at department stores that wouldn't hire black people.

None of these circumstances necessarily prevents a business from continuing to operate in a discriminatory manner--but to the extent that it reduces their profits, the business suffers--and non-discriminatory businesses benefit.

So how did those Southern states maintain this system of discrimination for so long? Did every business, of its volition, decide that black people couldn't try on clothes before buying? That blacks couldn't eat in the restaurant? (Of course, the separate drinking fountains were a matter of law--these are generally government buildings.)

Lots of states had laws requiring businesses to segregate their customers (for example, railroads in the Plessy decision, and some of the state laws regulating interstate buses into the 1940s). There were federal laws, such as the Davis-Bacon Act, that were passed for the purpose of guaranteeing unions would do government work. Because unions were still overwhelmingly antiblack, this put blacks out of work, and meant that non-union contractors, who would be most likely to hire blacks, were disadvantaged.

I would be curious to know if business discrimination had some legal teeth enforcing it, or if there was the threat of Klan action causing this. I find it very, very hard to believe that:

1. There weren't any greedy businessmen prepared to take advantage of the opportunity provided by catering to an integrated customer base.

2. That support for such discrimination included such an overwhelmingly majority of whites that there was simply no way for a greedy businessman to cater to this need.

Either of these require a uniformity of belief and action that usually involves coercion or government standards.

Aside from the copyright issue (which I believe nails it), those who contend that wedding photography isn't "expressive" might consider these scenarios:

(1) Elaine's Photography, Inc. (which consists of Elaine the photographer, a lighting assistant, and a part-time bookkeeper) agrees to shoot the lesbian commitment ceremony. Later Elaine discovers that she has accidentally double-booked that day. Without telling the lesbian couple, she subcontracts another photographer to shoot the ceremony. Afterward, the lesbian couple object to the photographs on the grounds that the photographs don't have the style or mood or attitude that they expected from seeing Elaine's previous work, and they refuse to pay. Can the lesbian couple be forced to pay? Can they sue?

(2) Elaine's Photography, Inc. agrees to photograph the lesbian commitment ceremony. The next day Elaine discovers that she has accidentally double-booked that day -- the other job was contracted first, and other financial commitments based on taking that job have already been made. She tells the lesbian couple and offers to either subcontract another photographer or release them from the contract. They object, claiming that they specifically want her, and that if she does not perform the photography they will sue on the basis of illegal discrimination. Can they legally compel Elaine to perform the photography?

@Hoosier:
> By the way, I don't believe that there is a "Homofascist"
> movement afoot.

I don't think there's any effort to oppress anyone coming from the gay community. I think they honestly believe their shared desires are fundamental human rights, and they're simply unable to fathom how those rights could oppress others - they consider only one half the equation. They're myopic on the matter, and given the "invisible in plain sight" life they've led for so many years, that's not surprising.

I think the basic desire of the gay community is for approval, which they have historically not gotten from the mainstream, and they can't see how it would be bad for everyone to get approval. Approval is good, right? Surely you would like to have approval, too. They fail to stop and think about whence the approval comes - from another person, who ought to have the right to withhold approval at his own discretion. But since the gay community generally doesn't disapprove of much, they don't quite fathom this concept.

uh_Clem The relevant question here is: By taking photos of the ceremony is the photographer engaged in expressive activity that supports gay causes? In Hurley, the presence of the gay marchers in the parade amounted to a tacit endorsement of the cause by the parade orginizers. My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.

Any wedding photographer whose photos aren't endorsing the weddings covered would be exceptionally bad at the job. Wedding photography is positive propaganda designed to make the day/event look as happy and joyous as possible.

Another bit of esoterica that may add something to the mix:

Under fairly basic contract remedy theory, specific performance is not available as a remedy for breach of a personal service contract. The theory supporting that ancient proposition is that ordering specific performance for such contracts would be essentially ordering "involuntary servitude"

Personal services involving creative expression (e.g., trial advocate, advertising copy writer, photographer, actor, media personality, journalist, novelist, screen writer) seem to me to be less amenable to specific performance, or to regulation as to whom such servants must serce, than to mere sellers of goods or commodities.

Note also that the UCC typically does not apply to personal service contracts.

I would wonder how well the photographer behaved when she told the couple she would not work for them. Having been in a similar circumstance (my commitment ceremony was intentionally non-traditional though) I would have been offended but moved on. In trying to figure out why the couple sued, the only reason I can come up with is they were turned down in a manner that made them very angry and the suit is an attempt to get even. (IOW: purely emotional.)

I'm far more worried about government and emergency personnel refusing to help gay people for religious reasons than I am about photographers or cooks.

Note that Cracker Barrel restaurants here in the South had no significant financial setbacks after it became public they fired employees and refused service to customers they assumed were gay. Bad behavior by a business is a matter of perspective; employing and serving gay people may have lost them customers.

Cramer: "I would be curious to know how much of this discrimination was imposed"

Racial segregation in the South was supported by law, coecion and "community standards."

In many respects the agrarian South was feudal in nature . . . blacks were not looked on as consumers but as cheap labor.

Within the business community, there were ways to make money from commere with blacks. While some white establishments were required by law or custom to exclude blacks entirely (hotels, for example), others served blacks, but in a lesser (and delibertly humiliating) way. For instance, restaurants would sell food to blacks, but they could not eat in the dining room; they had to go around to the back to get their meal.

Any Southern restaurant that treated blacks equally, would have forfeited their white customer base. There was no mechanism in the local community that would have caused this to change.

Bad behavior by a business is a matter of perspective; employing and serving gay people may have lost them customers.

And presumably if this was really a widespread attitude, the legislature wouldn't pass a sexual orientation antidiscrimination law, would it?

The flaw in this reasoning is that people are willing to pay money for intangibles. That restaurant might reject 10% of its customers, yet get more income from the remaining 90% of the customers because that 90% likes eating without blacks around, and are willing to pay for the privilege in the same way that they're willing to pay for a restaurant with polite waiters or nice paintings on the wall.

So there's no way for a society with 90% in support of such discrimination to pass such a law, is there? Unless it is imposed by an unelected elite.

Racial segregation in the South was supported by law, coecion and "community standards."

Again raising the point that a free market can't stop discrimination if it reflects community standards. But then again, a democracy that reflects those standards won't pass an antidiscrimination law, either.

I find it very, very hard to believe that:

2. That support for such discrimination included such an overwhelmingly majority of whites that there was simply no way for a greedy businessman to cater to this need.

Believe it. It's true.

Sowell's argument very foolishly neglects the fact that by serving blacks businesses would have lost lots of white customers.

Similarly, hiring black workers in certain jobs would have offended customers and co-workers, reducing profits no matter how dedicated and capable the black workers were.

A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?"

I would take her side from a legal standpoint. I would certainly ask why she was refusing to photograph a mixed-race couple. I would remind her of Paul's remarks in Galatians 3:28 (NIV):

There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.

The Bible makes no distinctions based on ethnicity, or sex. It does distinguish unregenerate sinners from those who or are not:

Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God. And that is what some of you were. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God. [NIV 1 Cor. 6:9-11]

The Bible is abundantly clear that distinctions based on race have no place in the Christian worldview. While I am philosophically opposed to antidiscrimination laws, it is difficult for me to work up any upset towards laws that prohibit public accommodation or employment discrimination based on race, national origin, or sex for this reason--although I can understand why people with Social Darwinist viewpoints might be upset that their freedom to discriminate is impaired. About the only groups that can claim their racial hatred is religiously based are groups like Aryan Nations (which is profoundly heretical in its claims to be Christian) and World Church of the Creator (which is openly non-Christian).

Christian (and Muslim, and Orthodox Jewish) disapproval of homosexuality is based quite firmly on their disapproval of homosexuality as a sin. When homofascists insist that we do not have a right of conscience to disapprove of their sin--and that they will use the government to force us to pretend, they open the door to the use of government to suppress their sin. I have no interest in returning to those days, which just bred hypocrisy and dishonesty. But if homofascists push long enough and hard enough to use the oppressive force of government, they may discover that it comes right back at them.

My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.

They're not necessarily a tacit endorsement of gay causes, but they are a pretty explicit valorization and endorsement of gay weddings, or at least, one gay wedding. Wedding photographers aren't photojournalists, which is the problem with your Klan example. Photographers who take pictures of Klan rallies, I imagine, generally aren't doing so with the intent to paint the Klan in the best possible light. If anything it's probably the opposite. If the Klan, however, calls a photographer and says, take some pictures of us Klansmen to show the world what nice and friendly guys we really are, that's something different. When couples hire wedding photographers, it's implicit that they want the photographer to make them and their wedding look good - to capture the joy of the occasion, the mutual commitment of the bride and groom, and so on.

I don't have time to read all of the comments so excuse me if this is repetitive. (And also please excuse my tier-four education.) There are circumstances when the government can force you to speak in a certain way if you want to keep your job. Example: Federal judge orders clerk to write opinion saying "X". Clerk has two choices, write X or quit job. Instead of a clerk it could be a federal pamphlet writer in Pueblo Colorado. The point is that the writer has to express him or herself according to the government's rules if he or she wishes to remain employed. Nobody would say this is a first amendment violation, because the writer could simply quit his/her job and write whatever kind of opinions or pamphlets he/she wanted to write. Why can't the photographer quit her job if conforming to the government's anti-discrimination policy is too uncomfortable?

I'm sure this is a stupid question, what with all the smarty-pantses commenting on this site, but hey....

Isn't this about the right of the photographer to be paid for expressing herself as she desires and not about the right of the photographer to express herself as she desires?

I can't understand what you're trying to say. If, for example, we were talking about a law requiring the New York Times to give "equal time" in its editorial pages, would there be some distinction between this being about the New York Times being free to express itself as it desired and being paid to express itself as it desired? What's this purported distinction?

"force their force" should be "forced their view"

There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.

Of late, I've studied the work of some conservative orthodox Christian theologians who note this text and a few others [“for freedom Christ has set us free … do not submit to the yoke of slavery” (Gal. 5:1)] have been misunderstood and misused by theologically liberal "revolutionary" theologians as somehow having something to do with political liberty or equality. Not so. Paul also says “slaves, obey … your earthly masters” (Col. 3:22). If one is a cafeteria Christian he can simply pick or choose which text to believe and disregard the other. If the Bible is infallible, good hermeneutics dictates you resolve a seeming contradiction. And that resolution is that the Bible is anti-politically charged on matters like race or political liberty and equality. The "liberty" the Bible speaks of is spiritual liberty or freedom from sin. Therefore one can be a chattel slave and still be "free" in Christ. Likewise, one can live under Jim Crow and still be "free" in Christ. The Bible doesn't demand the abolition of these oppressive structures but rather instructs believers to submit to them, live under them, and work within the system to advance the Kingdom of God -- see Romans 13.

As was pointed it out in Religious Accommodations and the Elane Photography Case, I think this is clearly a violation of Elaine Huguenin's rights of religious freedom. Many ministers, as part of their profession, will perform wedding ceremonies for the public (as opposed to just for members of their congregation). Under the reasoning of the state of New Mexico, they would be required, on pain of damages liability, to perform any ceremony requested by a prospective couple.

Also, there is some discussion here about whether photographing a wedding is a "product" or an "artistic expression". It is clearly both but I think that somewhat misses the point. It wasn't, I believe, the sexual orientation of the couple that was the reason for refusing to photograph the wedding, it was the ceremony itself. That is, as Eugine has pointed out a few times, it is the product, not the customer that is objectionable to her. If a homosexual wanted her to photograph something unrelated to homosexuality and she refused, then perhaps it could be shown that her reason for refusal was based on the prospective client's sexual orientation. But in this case, it's the product (photographs of a same-sex ceremony), not the race, sex, sexual-orientation, religion, etc. of the client that caused her to choose not to take the job.

Someone asks if the maker of wedding cakes would have the same protection. It seems to me that if I refused to make a standard, white and pink wedding cake for you because of your sexual orientation or race, that would be one thing. If I refused to make a cake with sexually explicit decorations on it, that would be another. Of course, I'm not a baker, I'm a photographer, so maybe I see everything through that particular lens (so to speak).

I appears that many people here seem to confuse sexual orientation with race. The federal constitution actively prohibits discrimination based on race through the 13th-15th amendments but does nothing to directly prohibit discrimination based on sexual orientation. Thus, when the 1st amendment right to free speech comes up against the (non-existent) constitutional protections against homosexual discrimination, the 1st amendment wins. Examples that invoke refusing black patrons are red herrings; this case involves different principals.

Examples that invoke refusing black patrons are red herrings; this case involves different principals.

While I agree with this, would an event photographer (let's say it's an African American photographer) be compelled to photograph a Klan rally or face charges of race discrimination? Somehow it doesn't seem likely.

Jon Rowe,

What i said still stands. If a state-enacted antidiscrimination law comes in conflict with a FEDERAL constitutional right (1st amendment) then the statutory right will fail.

Discriminaton based on race may be less protected under the 1st amendment because the 13-15th amendments were passed afterward and could theoretically supercede it. However, discrimination based on sexual orientation is not protected under the federal constitution - so in a conflict with the 1st amendment free speech would win and invalidate any state created protections against such discriminaton.

David Schwartz: The Hebrew Bible's prohibition of racially mixed marriages sprang from the desire to keep Israel religiously, not ethnically, pure (e.g., Deuteronomy 7:3-4). Clayton is right when he says that "neither Jew nor Greek" in Galatians 3:28 sums up the Christian position, but even pre-Christian Israelite religion allowed marriages with foreigners if the foreigners converted to the worship of Yahweh. This is a main point of the book of Ruth.

So does anyone think that painting this house is less about art than artificially posing people for their wedding pictures?

Would it be acceptable for someone who runs a business painting houses in this fashion to reject a black customer because they thought a black person standing on the porch would distract from the "message" his art was sending.

How about those cupped hands with the rings the other guy linked to. Is it credible that a business that advertises itself as doing wedding photography should reject a black person because a pair of black hands cupping some wedding rings sends an artistic "vibe", "interpretation", or whatever the "F", that is not intended by the artist?

Could someone show me a wedding picture where the substitution of a white person by a black one would substantially change the artistic expression that is conveyed to the viewer of the picture?

Until such time I will continue to believe that Eugene is wrong on this issue. I think that one of the other commenters made a credible argument about a gay wedding not actually being a wedding in certain jurisdictions. I buy that argument. I don't buy this nonsense about taking wedding pictures of blacks or mixed race couples being about free speech, or art, or any credible reason for rejecting service.

If you think it's credible in this situation then why not in all other categories. What of a chef who considers himself to be in the high-end dining experience arena and trades on the fact that their work is, in fact, a personal expression.

Can such a chef decide that part of that high end experience is not having the food consumed by non-whites? Perhaps he views the consumption of his product by "n_____"s a violation of his "personal expression". A debasement of his art.

Perhaps he's just squirting mustard on his hot dogs in swirls. Is that sufficient reason for denying blacks entrance into his restaurant?

To paraphrase Eugene,
"And if that means that hot dog vendors can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say." In this case what the hot dog vendor is saying is "I hate n____, and their eating of my hot dogs violates my personal expression."